PERTH VET EMERGENCY PTY LTD and CITY OF STIRLING

[2013] WASAT 204

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   PERTH VET EMERGENCY PTY LTD and CITY OF STIRLING [2013] WASAT 204

MEMBER:   MR P McNAB (SENIOR MEMBER)

HEARD:   9 JULY 2013

DELIVERED          :   12 NOVEMBER 2013

PUBLISHED           :  18 DECEMBER 2013

FILE NO/S:   DR 429 of 2012

BETWEEN:   PERTH VET EMERGENCY PTY LTD

Applicant

AND

CITY OF STIRLING
Respondent

Catchwords:

Town planning ­ Development application ­ Preliminary question ­ Non­conforming use rights ­ Veterinary practice in industrial zone ­ Town planning scheme permitting change of one non­conforming use to another non­conforming use ­ Tribunal tracing town planning schemes and approvals from 1971 ­ Previous approval as a warehouse ­ Subsequent showroom addition in 1983 ­ Plans showing existing factory area ­ Presumption of regularity applied to characterise approval as lawful integrated industrial use with sales and production components ­ Such a use created a single planning unit ­ Actual use consistent with this characterisation ­ Tribunal holding that no further planning approvals given since 1983 ­ Subsequent non­approved uses from 1993 inconsistent with 1983 approval ­ Any non­conforming use rights lost by discontinuance of lawful use

Legislation:

City of Stirling Local Planning Scheme No 3, cl 4.9.1(c)
City of Stirling District Planning Scheme
City of Stirling District Planning Scheme No 2, cl 1.5.1.1, cl 3.22, cl 4.2.4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)

Result:

Preliminary issues decided in respondent's favour

Summary of Tribunal's decision:

Preliminary questions arose out of a proposal to set up a veterinary practice in an industrial zone in Osborne Park.  Such a land use was not currently possible in that zone.  The applicant contended that certain non­conforming use rights attached to the land earmarked for development, and that it was legally possible, under the current town planning scheme, to convert such rights to another non­conforming use, notwithstanding the effective prohibition on a veterinary practice.

The long history of the changes in land use and town planning schemes was examined by the Tribunal commencing from the first planning approval, back in 1971, as a warehouse.  The Tribunal found that a 1983 approval for a showroom addition submitted by Kresta Blinds must be taken to be an approval for one integrated industrial usage operating on the site.  The City of Stirling had given the 1983 approval based upon plans that showed an existing factory area.  Kresta Blinds manufactured the sold goods from the site and these were lawful industrial uses.

The Tribunal found that no further planning approvals had been given since 1983.  However, since the 1983 approval and after Kresta Blinds vacated the premises in 1993, the site had been occupied in part by a furniture showroom (now vacated) and a Cash Converters operation (still in operation).

The Tribunal held that any existing land use rights, if any, had, for non­conforming use purposes, been relevantly extinguished by the discontinuance of the lawful 1983 use.

It was not possible to use and develop the land as a veterinary practice based upon these arguments and the preliminary questions were answered in the City of Stirling's favour.

Category:    B

Representation:

Counsel:

Applicant:     Mr P McQueen

Respondent:     Mr A Roberts

Solicitors:

Applicant:     Lavan Legal

Respondent:     McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

La Rosa v City of Wanneroo (2006) 154 LGERA 11

Morea Architects and Town of Vincent [2006] WASAT 263

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. This review relates to a proposal for the establishment of a Veterinary Emergency Facility (that is, a veterinary practice) in Osborne Park.  The relevant Osborne Park precinct contains, generally speaking, mainly industrial and commercial businesses and operations.  A significant part of the existing site wherein the facility is proposed to be located is taken up with an existing 'Cash Converters' operation. 

2. Veterinary practices are, however, not permitted in the precinct.  Thus, the application is built upon the existence of an alleged long‑standing non‑conforming use right and the availability of change to another non‑conforming use (that is, the veterinary practice). 

3. Preliminary questions have arisen in relation to the status of these non‑conforming use rights (if any).

4. The formal preliminary questions related to this matter are set out in the parties' agreed statement of the preliminary issue dated 7 June 2013.

5. The Tribunal answers the agreed preliminary questions adversely to the applicant.  In short, for the reasons that follow, the applicant does not have any non-conforming use rights attaching to the subject land.

6. The formal questions and the answers thereto are as follows.

   Q1.The preliminary issue for determination is whether for the purposes of cl 4.9.1(c) of City of Stirling Local Planning Scheme No 3 (LPS 3), the current use of the premises at No 14 (Lot 20) Burgay Court, Osborne Park (premises) is a non-conforming use or not.

   A1.The current use of the premises is not a non‑conforming use within the meaning of any town planning scheme.

   Q2.The primary preliminary issue requires determination of the following subsidiary questions:

   (a)Did the use of the premises become a non‑conforming use when:

   (i)City of Stirling District Planning Scheme No 2 (DPS 2) came into effect on 13 September 1985; or

   (ii)LPS 3 came into effect on 6 August 2010?

   (b)If the Tribunal finds that the use became a non‑conforming use on the commencement of DPS 2 on 13 September 1995, has the use subsequently changed or been discontinued for the purposes of the non‑conforming use provisions of DPS 2 or LPS 3?

   A2.The answer to the preliminary issue in Q2(a)(i) is:

   No.

   The answer to the preliminary issue in Q2(a)(ii) is:

   No.

   The answer to the preliminary issue in Q2(b) is:

   The approved use on 13 September 1985 was a conforming use which subsequently became, in any event, a discontinued use.

7. The answers to these questions (and the reasons therefor) were delivered orally.  What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.

8. Subject to hearing from counsel, the Tribunal, having regard to these answers to the preliminary issue, is inclined to make a consequential order dismissing the application.

Agreed facts

1. To assist in resolving these questions, the Tribunal has received various detailed written submissions (both final and supplementary) and extensive oral argument from counsel addressing both the long history of the use of the subject land and the complex history (covering some four decades) of the town planning schemes applying thereto.

2. In addition, written and oral evidence was received from previous owners and operators of the subject land.

3. An extensive set of agreed facts was tendered.  Apart from two factual matters in dispute, 32 other factual matters were agreed upon.  The agreed facts are as follows, with the two 'facts' that could not be agreed upon shown in italics; those two areas of disagreement do not materially affect these reasons, or are superseded by the findings herein:

   1.On 22 June 1971, the City of Stirling (City) granted an approval to commence development under the Metropolitan Region Scheme (MRS) for a development described as 'brick warehouse' on Lot 20 Selby Street, Osborne Park (Lot 20) (1971 Approval).

   2.The 1971 Approval was implemented and the brick warehouse building was constructed on Lot 20 (Warehouse Building).

   3.On 17 October 1974, City of Stirling District Planning Scheme (DPS) was gazetted and commenced operation.

   4.Lot 20 was zoned 'rural' initially and then 'industrial' under DPS.

   5.Prior to Kresta Blinds' occupancy of Lot 20 in 1982, the immediately preceding use of the Warehouse Building was the assembly of gas heaters.  This use occupied the entire Warehouse Building.

   6.The assembly of gas heaters ceased and the Warehouse Building vacated before Kresta Blinds commenced occupation in 1982.

   7.On 29 April 1983, an application for approval to commence development was made for a 'brick metal roof showroom' on Lot 20.  The 1983 Application shows Kresta Blinds as the owner of Lot 20.  However, this is incorrect as ownership of Lot 20 only transferred to [Kresta Blinds] on 14 January 1985.

   8.The plans included as part of the 1983 Application show a 'proposed new showroom' addition to the 'existing factory area' (1983 Addition).

   9.An approval to commence development for the 1983 Addition was issued on 17 May 1983, subject to conditions.  Condition 4 stated:

   4.A maximum of one tenant/use operating from the site.

   10.Kresta Blinds used the Warehouse Building to make vertical blinds and for related storage and administration.  The administrative operations were conducted in the first floor office area.

   11.Lot 20 was zoned 'industrial' under DPS when the 1983 Addition was approved on 17 May 1983.

   12.The 1983 Addition was constructed and used by Kresta Blinds to display and sell vertical blinds.  There was no internal partitioning within the 1983 Addition and it was separated from the Warehouse Building by a wall.  The extent of openings and doorways in this wall is unclear.

   13.At some later time (details of which are unclear) Kresta Blinds displayed vertical blinds in an area within the Warehouse Building immediately behind the 1983 Addition.  Its dimensions were approximately 5 m x 18 m (90 m²).  No structures were erected within the Warehouse Building to establish this expanded area.

   14.[Kresta Blinds] became the registered proprietor of Lot 20 on 14 January 1985.

   15.City of Stirling District Planning Scheme No. 2 (DPS 2) was gazetted and became operational on 13 September 1985.

   16.Under DPS 2, at the time of its gazettal, Lot 20 was zoned 'general industrial'.

   17.In 1986, Kresta Blinds reduced the use of the 1983 Addition for the display of vertical blinds as this display function was concentrated at Kresta Blinds' head office at Unit 6, 505Scarborough Beach Road, Osborne Park.

   18.However, the 1983 Addition continued to be used to display and sell vertical blinds.

   19.Between 22 December 1987 and 29 June 1989, [Kresta Blinds] owned Lot 19 Burgay Court, Osborne Park, which adjoined Lot 20 to the west.  Lot 19 was used by Kresta Blinds for some processes involved in manufacturing vertical blinds. At some uncertain time prior to Kresta Blinds' occupancy of Lot 30 ending in June 1993, the use of Lot 19 by Kresta Blinds ceased.

   20.Lots 19 and 20 were transferred to Casell Nominees Pty Ltd on 20 June 1989.

   21.Thereafter, Kresta Blinds occupied Lot 20 pursuant to a lease.  It vacated Lot 20 on or before 22 June 1993.

   22.Regal Park Enterprises Pty Ltd became the registered proprietor of Lot 20 on 25 November 1993.

   23.Slamdunk Holdings Pty Ltd became the registered proprietor of Lot 19 on 25 November 1993.

   24.Between December 1993 and February 1994, Lot 20 was used solely for the purposes of a business selling and purchasing furniture.  The 1983 Addition was used as part of this business to display furniture which was for sale.  A small section of the [W]arehouse [B]building was used as an office.

   25.In February 2004, a 'Cash Converters' business commenced operating from the Warehouse Building.  Physical alterations were undertaken to the Warehouse Building to construct the area occupied by Cash Converters.  These alterations included:

   (a)removal of the rear wall of the 1983 Addition;

   (b)erection of walls and a suspended ceiling;

   (c)creation of an entry in the centre of the 1983 Addition.

   26.The Cash Converters operation included a 'Buys and Loans' facility which occupied a small room which was accessed through a doorway midway along the Selby Street elevation of the Warehouse Building.  The room had chairs and a counter.

   27.An office offering personal finance was established in the northeastern end of the 1983 Addition between 2006 and 2008.

   28.The furniture business continued operating in the portion of the Warehouse Building not occupied by Cash Converters, the Buys and Loans office and the personal finance office until the furniture business ceased in February 2013.

   29.At all material times,

   (a)the furniture business; and

   (b)the Cash Converters, Buys and Loans and personal finance offices,

   were conducted as separate businesses by different companies.

   30.Planning approval has not been granted by the City since the grant of the 1983 Approval.

   31.Amendment 492 to DPS 2 was gazetted and became operative on 29 August 2008.  Relevantly, Amendment 492[:]

   (a)made 'showroom' a prohibited use in the 'general industry' zone; and

   (b)introduced a new definition of 'showroom'.

   32.On 6 August 2010, City of Stirling Local Planning Scheme No. 3 (LPS 3) was gazetted and commenced operation.  It revoked DPS 2.

   33.Under LPS 3, Lot 20 is zoned 'industry'.

   34.The applicant submitted an application for planning approval dated 3 October 2012 to the City for a 'veterinary facility' occupying 876 m² of the premises at Lot 230.  The area of the premises in which the veterinary facility is proposed is all the floor space except that presently occupied by Cash Converters and the Buys and Loans office.  The area in which it is proposed to operate the veterinary facility has been vacant since the furniture business ceased in February 2013.

The 1983 Kresta Blinds approval

1. Instead of a chronological survey, it is convenient to start with the main planning approval relevant to the subject land, the Kresta Blinds (Kresta) approval from 1983.

2. It was agreed that as at 1983, the zoning of the subject land was Industrial.  In May 1983, the City gave conditional planning approval to Kresta under both the Metropolitan Region Scheme (MRS) and its (then in force) local town planning scheme (that is, DPS).

3. The approved use was: 'Proposed new showroom addition' (emphasis added).

4. This was an addition to the building on the Burgay Court (or north) side of the subject land, that is, the front or main entrance side.  Importantly, a condition was imposed by that approval in the following terms:

   A maximum of one tenant/use operating from the site.

5. Although to a degree ambiguous, this condition indicates that only one land use was contemplated or permissible, covering both the existing factory use and the new additional showroom use.

6. The accompanying approved plan showed a large 'existing factory area' at the rear, that is, to the South; a small covered entry area to the West; and the removal of the existing windows facing north, that is, to Burgay Court.

7. By reference to both a sketch line drawn during the hearing on a copy of the 1983 application plan, and the other evidence of a previous Kresta owner (Mr Brice), it appears that there was a front display area loosely partitioned at the Burgay Court side of the building, behind the windows that were destined to be removed.  This area formed the basis of the expanded showroom area the subject of the planning approval.

8. Applying a presumption of regularity as regards the rear factory area indicated on the 1983 application and having regard to the terms of the main 1983 approval itself (including the accompanying plan), as at that date, Kresta had, or must be taken to have had, planning approval for the factory operation or unit (a factory unit in the ordinary sense of that word, not as defined in any of the City's schemes), with an additional display room, that is, the showroom and associated facilities for the business, including external parking.

9. The approved land use was always and continues to be, in my view, one integrated industrial usage operated, at that point, by Kresta.  Indeed, Kresta's intentions and actual use over the years was wholly consistent with the approval given.

10. The presumption of regularity applied here (see, for example, its application in this jurisdiction in Morea Architects and Town of Vincent [2006] WASAT 263 at [60]) is applied only insofar as the City itself must be taken to have accepted that a lawful industrial use was taking place immediately before Kresta was granted planning approval for the addition in 1983.

11. Alternatively, by approving a complementary element or component found in the land use classification Industrial (that is, the sales component), in the full knowledge of the other industrial activity components then taking place on the site ‑ evidenced, in part, by the plan itself ‑ the City must be taken to be granting planning approval or otherwise regularising the situation for the whole of those activities.

12. Whatever path is followed, we arrive at the same destination in terms of an approval.

13. Further, it appears that the, in effect, combined land use definitions found in DPS of 'Industry' and 'Light industry' cover the Kresta site land use activity as at 1983.  Importantly, as I have indicated above, sales activity (and storage) are contemplated components of industrial activity in the definition of 'Industry'.

14. The alternative land use definitions of 'Showroom' or 'Warehouse', which were a central part of the applicant's case at various points, would not cover the process of the making of articles in the course of trade or business, which Kresta did, in contrast to the 'Industry' definition, which is premised upon including such activities as part of an industrial use.

15. As DPS has separate zonings for Industrial and Light Industrial and the Zoning Table deals with both 'Industry' and 'Light Industry' uses, the better view is that the approved use as at May 1983, given the land's zoning and the circumstances set out above, was that of 'Industry'.

16. An alternative, but related, way of looking at the matter is that the City's 1983 approval must be taken to be, in effect, an approval for the development associated with the intensification of the industrial use in land zoned for that purpose.  That is, the then recognised factory area or operation was to be 'intensified' by the complementary addition of the sales or showroom area.

17. Finally, I should note that as Mr Roberts, counsel for the respondent pointed out, under cl 3.22, DPS expressly permitted, with restrictions not presently relevant, a retail use in connection with an approved industrial use.  It is, however, unnecessary to rely upon this additional source of authority for the 'true' characterisation of the approved land use that I have reached.

18. Thus, to sum up, as at May 1983, there was one approved use for the entire site, that is, an industry use.  Considering the whole site at that point, as a 'single planning unit', the previous 1971 approved use as a warehouse (see below) did not, in fact or in law, authorise the industry use, particularly as to the making and selling of articles of production.  (A single planning unit, as an established concept in Western Australian planning law, is discussed and applied in La Rosa v City of Wanneroo (2006) 154 LGERA 11 (La Rosa).

The 1971 approval

1. Prior to this relatively modern planning history, the site had, as we have seen, in June 1971, been approved under the MRS for development and use as a brick-constructed 'warehouse', with some very general markings on the plan showing an internal area 1 and an internal area 2; office space and amenities.

2. The application form that led to that approval contains a note by the City that the 1971 MRS zoning was apparently Industrial at the time.

3. Importantly, there are, despite an extensive search by the City, no further planning approvals extant beyond those of 1971 and 1983.

The City's advice and records

1. A lengthy investigation by the City's Mr Martinovich into the planning history of this site summarises the significant physical changes that have taken place over time.  As I foreshadowed above, none of these improvements has been approved since the 1983 approval.

2. Regrettably, the City seems to have given incorrect advice in another regulatory context to the current owners (which, for convenience of reference, I shall refer to as 'Cash Converters') on at least two occasions.  Thus, in 2008 and then in 2010, the City seems to have assumed that the 1983 approval was for a 'showroom' and covered the entire site.  For the reasons already given above, this characterisation is and was always incorrect.

3. In fact, as I have found, a small showroom addition was approved, perfectly consistent with the complementary sales component of an existing industrial land use definition.

4. The presumption of regularity does not assist the applicant on this point (that is, the incorrect 'showroom' advice).  It cannot be applied here upon the generalised and incorrect advice given by the officers some years ago.  In any event, the officers have recanted from that position.  Nor can it be invoked based upon the misunderstanding of the approved land use when the successors to the Kresta tenancy or ownership took over the site.  The presumption of regularity cannot fill the gap created by the absence of proper planning approvals from May 1983.

After Kresta left

1. It appears that Kresta vacated the site in the first half of 1993 and that this process was certainly completed by 22 June 1993.  Thereafter, the whole site was used ‑ probably from about December 1993 ‑ for the sale, but not the manufacture, of new furniture.  Used furniture was also sold on the site.

2. DPS 2 had commenced in September 1985.  Now, whether the furniture store was a shop or a warehouse or any equivalent use class, it was certainly, as I have found, never approved as such, nor was it, on the logic set out above, an industrial use.

3. This is because, critically, as I have said, there was no relevant process of manufacture or production on site, as the Industrial land use classification, in effect, contemplates or requires with respect to such processes.

4. And to avoid any doubt, a veterinary practice would also be inconsistent with the approved Industrial use given in May 1983.  Further, as I understand it, it is common ground that (apart from any alleged rights, if any, flowing from a lawful non-conforming use) such a use has never been capable of being approved at any point under any of the applicable town planning schemes, at least while the land has remained zoned as Industrial.

The effect of DPS 2 and LPS 3

1. In relation to DPS 2, Mr Roberts contended in his written submissions as follows:

   …

   25.Under clause 1.5.1.1 of DPS 2:

   (a)a non­conforming use came into existence if at the gazettal date (ie 13 September 1985) any land, building or structure was being lawfully used for a purpose not permitted by the provisions of DPS 2;

   (b)a non‑conforming use was permitted to continue; and

   (c)it was impermissible to add to or alter a building used for a non‑conforming use unless approval was granted.

   26.Clause 1.5.1.1 had no application to Lot 20 on 13 September 1985 because Lot 20 was being lawfully used for a purpose which was permitted by DPS 2.

   27.DPS 2 applied a 'general industrial' zoning to Lot 20.

   28.All components of the use of Kresta Blinds were encompassed by the 'general industry' use class which was a permitted ('P') use within the 'general industrial' zone.

   29.As defined, the 'general industry' use class encompassed storage of goods, work of administration or accounting and the sale of goods resulting from the industrial processes undertaken on the same land.

   30.In addition, insofar as blinds were displayed and sold within the 1983 Addition, this was permitted by clause 4.2.2 of DPS 2 … which permitted the sale of goods within the general industrial zone if certain requirements were met.  All requirements were met [if]:

   (a)the goods (ie blinds) were manufactured and stored in bulk on Lot 20;

   (b)no more than 20% of the gross floor area of the building was used for the sale of goods and the area was divided from the balance of the occupancy by walls not less than 2.4 metres in height; and

   (c)blinds were not in the list of excluded goods in clause 4.2.4.3.

   31.Therefore, all aspects of the operations conducted on Lot 20 came within the 'general industry' use class which was [a] permitted use under DPS 2.

   32.It was unnecessary to separately classify the display and sale of blinds in the 1983 Addition as a 'showroom' or some other separate use under DPS 2.

   33.Even if the use of the 1983 Addition was properly classified as a separate 'showroom' use under DPS 2, it was permissible as an 'IP' use in the general industrial zone ….

   34.Under clause 1.3.2.2, a use was permissible as a 'IP' use where it was incidental to the predominant use as decided and approved by the Council.  The use of the 1983 Addition for the display and sale of blinds was incidental to the predominant industrial use conducted on Lot 20.  Therefore, even if regarded as a separate showroom use (which the City maintains is an irrelevant and unnecessary classification) it was permissible as an incidental use on 13 September 1985 when DPS 2 came into effect.

   35.For these reasons on 13 Septmber 1985, Lot 20 was being used for purposes permitted by DPS 2.  Consequently, the use of Lot 20 did not become a non‑conforming use upon the commencement of DPS 2 and the provisions of clause 1.5.1.1 had no application.

1. Based upon the findings already made above, I accept that as at the gazettal date of DPS 2 (13 September 1985), the preservation of non‑conforming use rights effected by cl 1.5.1.1 of DPS 2 had no application or operation with respect to the subject land.

2. This is because the approved use was lawful and wholly consistent with both the zoning (at that point, 'general industrial'), and the new corresponding land use definition of 'general industrial'.

3. The position as regards cl 4.2.4 of DPS 2, which replicates cl 3.22 of DPS (see above) remains the same.  That is, it is unnecessary to rely upon this additional source of authority in the ascertainment of the 'true' characterisation of the approved land use.

4. It follows that, and in any case, when Kresta discontinued its use as an industry in 1993, as the evidence clearly establishes had occurred, that use was effectively extinguished.  This was because although that use was lawful, it did not continue or sufficiently continue so as to engage any non-conforming use rights provision of DPS 2.

5. Further, it was then replaced by an altogether different and unapproved land use, first as a furniture store and then, from early 2004, as a Cash Converters full‑scale operation.

6. Discussing the discontinuance of a use in a planning context, Johnson J said in La Rosa at [98]:

   … For a use of land to fall within the provisions [conferring non‑conforming use rights] that use must … be a continuing use.  Practically speaking, there will inevitably be periods of discontinuance in the use of any land; for example, when premises close for holiday periods, stocktakes or other purposes consistent with the continuing use of the land to conduct a business.  However, any complete cessation of the use, such as the closing down of a business, or the commencement of another use, constitutes a break in the continuity of the use which, in my view, takes the use of the land outside the protections of the nonconforming use provisions.

7. Here, there was clearly both a 'closing down of a business' and 'the commencement of another use' of the land.

8. This remains the position with respect to LPS 3, which commenced on 6 August 2010.  Under LPS 3, non‑conforming use rights are predicated upon an existing lawful use of land immediately before the commencement date.  That was not the case here.

9. It is therefore unnecessary to consider whether the unlawful unapproved use or uses that replaced the Kresta approved use in 1983 in any event breached condition 4 of that 1983 approval, dealing with a single use or tenancy.

10. It is also unnecessary to consider the effect of amendment No 492 to DPS 2 (which commenced on 29 August 2008), which prohibited a showroom use in the general industry zone, as the land is currently zoned.  To sum up in response to one of Mr McQueen's central contentions on this point, there is, in fact and in law, no approved relevant separate showroom use, whether predominant or not, established on the evidence.  This use would have been, I note, lawful until amendment No 492 to DPS 2 commenced.

11. More importantly, no amount of liberality in the application of the non‑conforming use right principles can overcome the critical problem for the applicant, namely that it has been satisfactorily established that a lawful use as an industrial site had been established, one that was discontinued many years ago when the site ceased to be used for either that purpose or related purposes.

12. Thus, absent anything flowing from any non-conforming use rights, the applicant's current proposed use is not permitted under the current town planning scheme (LPS 3).

13. I will hear counsel on whether an order should be made, at this point, disposing of the application by dismissal, as it would seem that the review cannot now succeed as a matter of law.

Orders

For the reasons given above, the preliminary issues for determination were answered as follows:

Q1.The preliminary issue for determination is whether for the purposes of cl 4.9.1(c) of City of Stirling Local Planning Scheme No 3, the current use of the premises at No 14 (Lot 20) Burgay Court, Osborne Park is a non‑conforming use or not.

A1.The current use of the premises is not a non-conforming use within the meaning of any town planning scheme.

Q2.The primary preliminary issue requires determination of the following subsidiary questions:

(a)Did the use of the premises become a non‑conforming use when:

(i)City of Stirling District Planning Scheme No 2 came into effect on 13 September 1985; or

(ii)City of Stirling Local Planning Scheme No 3 came into effect on 6 August 2010?

(b)If the Tribunal finds that the use became a non‑conforming use on the commencement of City of Stirling District Planning Scheme No 2 on 13 September 1995, has the use subsequently changed or been discontinued for the purposes of the non-conforming use provisions of City of Stirling District Planning Scheme No 2 or City of Stirling Local Planning Scheme No 3?

A2.The answer to the preliminary issue in Q2(a)(i) is:

No.

The answer to the preliminary issue in Q2(a)(ii) is:

No.

The answer to the preliminary issue in Q2(b) is:

The approved use on 13 September 1985 was a conforming use which subsequently became, in any event, a discontinued use.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, SENIOR MEMBER